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United States v. Batista

United States District Court, W.D. Virginia, Harrisonburg Division

May 12, 2017

UNITED STATES OF AMERICA
v.
HECTOR BATISTA, Petitioner.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         Petitioner Hector Batista brings this habeas corpus petition pursuant to 28 U.S.C. § 2255, asking the court to vacate or correct his sentence in light of the United States Supreme Court's decision in Johnson v. United States. 135 S.Ct. 2551 (2015). ECF No. 92. The government moved to dismiss Batista's § 2255 motion, ECF No. 101, and Batista responded. ECF No. 105. For the reasons that follow, the court will GRANT Batista's § 2255 petition and DENY the United States' motion to dismiss.[1]

         I.

         On May 6, 2010, a criminal judgment was entered sentencing Batista to a term of.160 months of incarceration for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).[2] ECF No. 79. Because the court determined that Batista had three or more qualifying convictions under the Armed Career Criminal Act (the "ACCA"), he was subject to 18 U.S.C. § 924(e)'s mandatory minimum sentence of 180 months, rather than the 120- month maximum sentence otherwise authorized under § 924(a)(2).[3] The court calculated the sentencing guideline range as 188 to 235 months. Batista also was convicted of conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846 & 841(b)(1)(B), and sentenced to a concurrent term of 160 months.

         The criminal judgment accepted the factual findings in the Presentence Investigation Report ('TSR"), which found Batista to be subject to the enhanced penalty under § 924(e) based on convictions listed in PSR paragraphs 26-32, consisting of a 1986 conviction for New York reckless endangerment, [4] five convictions for New York first degree robbery in 1990 and 1991, and a 1990 attempted murder conviction. ECF No. 83. Batista did not object to the presentence report, and did not appeal his conviction.

         On April 8, 2016, Batista filed a motion to vacate his sentence under 28 U.S.C. § 2255. ECF No. 92. The government subsequently filed a motion to dismiss. ECF No. 101.

         II.

         Under 28 U.S.C. § 2255, a federal inmate may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. Courts may afford relief where "the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a). If the court determines the sentence was unlawfully imposed, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).

         A convicted felon found guilty of possessing a firearm faces a maximum sentence of 120 months. 18 U.S.C. § 924(a)(2). However, the ACCA provides for a mandatory minimum sentence of 180 months when a defendant was previously convicted of at least three prior serious drug offenses or violent felonies. Id. § 924(e)(1). A violent felony is defined as:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, er otherwise involves conduct that presents a scriou3 potential risk of physical injury to another. . . .

Id. § 924(e)(2)(B) (strikeout added).

         In 2015, the Supreme Court invalidated the language stricken above after finding it void for vagueness. Johnson v. United States. 135 S.Ct. 2551 (2015) ("Johnson IF').[5] Though often parsed into three clauses-the force clause, the enumerated clause, and the residual clause-§ 924(e)(2)(B) is comprised of two numbered subsections. See Begay v. United States. 553 U.S. 137, 142-44 (2008). Specifically, the first subsection states:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

18 U.S.C. § 924(e)(2)(B)(i) ("Subsection (i)"). The second subsection states:

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. .. .

18 U.S.C. § 924(e)(2)(B)(ii) ("Subsection (ii)"). Subsection (ii) lists several specific "enumerated offense" crimes-burglary, arson, extortion, and use of explosives-that amount to violent felonies. The residual clause of subsection (ii) goes on to encompass any crime that "otherwise involves conduct that presents a serious potential risk of injury."

         Batista's qualifying convictions, for New York first degree robbery and attempted murder, do not implicate the enumerated clause. Moreover, as the government notes, because Batista has five first degree robbery convictions, the court need not address his attempted murder conviction. His entitlement to relief will be determined by whether New York robbery remains an ACCA predicate. Thus, the sole question in this case following Johnson II is whether violations of New York's first degree robbery statute, NY. Penal Law § 160.15, fall within 18 U.S.C. § 924(e)(2)(B)(i)-the force clause of the ACCA.[6]

         III.

         On the merits, the government first acknowledges, under United States v. Jones, No. 15-1518-cr, 2016 WL 3923838 (2d Cir. July 21, 2016), [7] that New York first degree robbery is not categorically a violent felony. However, the government argues that the statute is divisible, allowing the court to consider under which subsection Batista was convicted. Because Batista has presented no records of his prior convictions to the court, the court cannot determine which subsection Batista was sentenced under; therefore, the government contends that he has failed to meet his burden of showing that he is entitled to relief. ECF No. 101, at 13.

         In response, Batista argues that physical force is not a necessary element of New York robbery, rendering the ACCA inapplicable. Batista acknowledges that "[e]very degree of New York robbery begins with the requirement that a person 'forcibly steal[]' property which is defined under NY. Penal Law § 160.00 to require 'us[ing] or threatening] the immediate use of physical force.'" ECF No. 92, at 5 (brackets in original). However, Batista argues that the New York law requires proof of only slight force, encompassing conduct far below the ACCA's threshold of violent force. Johnson I. 559 U.S. at 140 ("We think it clear that in the context of a statutory definition of ''violent felony, ' the phrase 'physical force' means violent force-that is, force capable of causing physical pain or injury to another person.").

         A.

         Batista's argument has been adopted by the Fourth Circuit Court of Appeals in recent months in similar cases involving application of the force clause of the ACCA to the ...


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